Supreme Court — 2015-16 Term — Two Weeks to Go (Updated 6-20)

While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4. As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year. It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.

This year, there are thirteen cases left to be decided. The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks. While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week. Of the remaining thirteen cases, three or four of them have major political implications.

Normally, at this point in time, it is not too hard to make tentative guesses about which Justices are likely to be having opinions in each case. That process is harder this year for two reasons: 1) the death of Justice Scalia and 2) when the remaining cases were argued.

The ability to predict comes from the general practice of the Supreme Court. While the senior justice in the majority (and the Chief Justice is considered to be the most senior justice for this purpose) gets to assign the opinion for the case, the justices tend to work together to keep the workload of all of the justices somewhat balanced. (It’s not absolutely balanced as newer justices tend to get less significant cases and some justices who shall remain nameless and silent during argument tend to not get closely-divided cases.) This balance occurs within each month’s round of cases and across the term as a whole. In other words, justices tend to only get a second opinion within a month if there are more than nine cases (eight with Justice Scalia gone) in an argument session, and over the course of the term those second opinions tend to get spread around so you rarely have one justice having just seven opinions and another justice having ten opinions (and when that does happen it ends to be a product of a justice “stealing the case” by writing an opinion — either concurring or dissenting — that gets the support of the majority away from the initial proposed majority opinion).

Justice Scalia’s death altered these basic math of the term in several ways. First, any opinions that he still had outstanding had to be reassigned. This change is probably the least significant of the changes. Justice Scalia had already finished his cases from October and November leaving only his December opinion (discussed further below) and any January opinion. Second, his passing had the potential to create a 4-4 tie in some of the cases assigned before his departure. (So far, that has happened in only tow of those cases — one of which was probably assigned to Justice Thomas from October and the other being a January case that was probably assigned to either Justice Scalia or Justice Alito.) Third, and most significant, having only eight justices to handle the cases means more justices will be writing two opinions in any given month (unless there are only eight or fewer cases).

The other problem comes from when the remaining cases were argued. Two of the thirteen cases were argued in December (when there were ten cases total); and we have a pretty good idea about who has the one major case from December. Four were argued in February (when there were ten cases argued). However, no justice has written two opinions in February yet; so any justice could have two opinion. In other words, we know which two justices have at least one opinion left to issue in February, but it is impossible to predict which other two justices will have the other two cases. There is only one case left in March and it will almost certainly be written by Justice Alito. Finally, there is April. The April sitting is always the hardest one to predict because (unlike the other months in which less divisive opinions are done leaving only the close cases), two months is a rather short period to even issue consensus opinions. At this point, there are still six opinions left from April (out of ten case) and no justice has written two opinions.

Based on the above, December is relatively predictable. Only two opinions are left and the only justices who do not have December opinions are Justice Scalia and Chief Justice Roberts. While we do not have any clue about which justice inherited Justice Scalia’s case, the two cases left make it easy to guess at which opinion was originally assigned to Justice Scalia and which opinion was assigned to Chief Justice Roberts. Chief Justice Roberts probably has the opinion in the Fisher case. There are several reasons why this is likely. First, the expected breakdown of the vote in that case was a 3-2-3 vote (Justice Kagan was recused) with the Chief Justice and Justice Kennedy being the two in the middle who controlled the outcome of the case. While the Chief Justice and Justice Kennedy are not friendly to affirmative action (the Fisher case is the challenge to the inclusion of some affirmative action factor in the University of Texas’s admissions policy), they would tend toward writing an opinion that makes it harder to justify such programs rather than saying they are always improper (as Justices Scalia, Thomas, and Alito would have). Second, since the Chief Justice probably controlled the assignment of Fisher, he most likely assigned the case to himself recognizing the necessity of building a delicate compromise. (Particularly as the governing precedent was a 5-4 case supporting affirmative action and, while the Chief Justice will sometimes join a decision overruling precedent, he does not like the appearance that the change of one justice — here from Justice O’Connor to Justice Alito — changes the law.) Third, the other case should not have taken six months to write. The issue in the other cases is whether tribal courts have the ability to hear personal injury cases when one of the parties is not a tribe member. Cases involving tribal jurisdiction do not normally take six months to write. (We got an opinion in January’s tribal jurisdiction case in March.)

Given that the Chief Justice probably has Fisher, what should we expect. Least likely is an opinion finding that the University of Texas’s policy is proper. While, under existing law, it probably is proper; Roberts and Kennedy are firmly in the school of winding down affirmative action programs with all deliberate speed. Somewhere on the less likely side is a 4-3 opinion banning affirmative action entirely. While Roberts and Kennedy would probably agree with this result, it would be more controversial than Roberts would like. If ten years from now, Roberts had a 6-3 or 7-2 majority for such an opinion, it would be a done deal. Issuing such an opinion when only seven justices were involved in the decision in the middle of an election year is merely inviting Justice Garland and Justice Kagan to be part of a 5-4 majority overruling Fisher. The two most likely results (and the actual result depends more on the three than the four) is either a plurality opinion finding that, under existing law (actually a somewhat significant revision to that law), the program fails or, if the Chief Justice can work out a compromise, an opinion identifying some flaw in the lower court opinion (which would actually be a minor revision in the law) that would justify sending the case back for another round in the lower court (essentially what happened with the first opinion).

From February, we are still waiting for the Texas abortion case. (There are also three criminal law cases — one constitutional and two statutory). We know that Justice Breyer and Justice Kagan have at least one opinion each from February (with Justice Breyer being likely to have one of the two statutory cases, given his background). If I had to bet on who has the abortion case, I would predict Justice Kennedy or Chief Justice Roberts. The only way to avoid affirming by an equally divided vote would be some opinion saying that the lower court gave too much deference to the legislature while not actually deciding the validity of the law (similar to what happened in the first round of Fisher). Such an opinion technically upholds the test that Justice Kennedy wrote twenty-five years ago with Justices Souter and O’Connor while leaving the merits of the case to another day when there will be nine justices to resolve it.

Beyond that guessing at the April cases involves a lot of reading of tea leaves with very little evidence. The Supreme Court heard sixty-nine cases, this term. After taking into account the opinions written by Justice Scalia and the other opinions disposed of without a signed majority opinion, there are 62 cases likely to have a signed majority opinion. That means that each Justice likely had eight cases assigned to them (giving Thomas credit for his October case and guessing about the January case and whether any justice ever got the birth control mandate case). Based on that Justice Ginsburg probably does not have any outstanding opinions. Justice Breyer probably has one case from February and one case from April. Justice Kennedy probably has one case from April left. Justice Thomas probably has one case from February or April left. Justice Kagan has a February case and one additional case. Chief Justice Roberts has a December case an April case and one additional case (probably February). Justice Sotomayor probably has a February or April case left. Justice Alito is the big unknown, being three or four cases short. We know that he has a March case left. He might have gotten the December tribal case. He should have an April case. (The almost certain April cases are Chief Justice Roberts, Justice Kennedy, Justice Breyer, and Justice Alito. The five Justices in the mix for the December case, the two extra February cases, and the two extra April cases are Chief Justice Roberts (needing one case), Justice Thomas (needing one case); Justice Alito (needing one or two cases); Justice Sotomayor (needing one case); and Justice Kagan (needing one case). The pending April cases include the challenge to the deferred deportation program of the Obama administration and the challenge to the conviction of former Virginia Governor Bob McDonnell which will have a major impact on future attempts to charge public officials for corruption in office.

UPDATE:

None of the big “political” cases down today, but there were five decisions that give a lot of clarity to who may have the political cases. None of the two December cases had an opinion; so the prediction remains that Chief Justice Roberts has the Fisher case. We had two February opinions (from Justice Alito and Justice Thomas). That leaves two cases from February and neither Justice Breyer nor Justice Kagan has an opinion from February yet. My hunch is that Justice Breyer is more likely to have the Texas abortion clinic case than Justice Kagan (leaving Justice Kagan with the federal sentencing case), but either having this opinion would be big news. (There is still a possibility of a 4-4 tie.) Looking at the numbers, Alito and Roberts should have an April opinion. Other than the remaining February opinion, Breyer shoukd be done and Ginsburg and Kennedy should be done. Besides the opinions noted above, Thomas, Roberts, Alito, Kagan, and Sotomayor still are one opinion short of eight opinions with three unaccounted for opinions. Given that Alito and Thomas may have lost a case when Justice Scalia died, both are good bets for having gotten the extra case for December leaving Roberts and either Kagan or Sotomayor to get the extra opinion from April. That means that Chief Justice Roberts is probably the best bet to have the Texas immigration case — my hunch says a narrow opinion that the states lack standing.